1. Introduction.

1.1 Modification. Wikimedia reserves the right to modify or update this Agreement at any time in its discretion. Customer will be responsible for reviewing any future modifications or updates that may impact Customer’s use of or access to the Enterprise APIs. Customer’s continued use of or access to the Enterprise APIs following such modifications or updates will constitute Customer’s acceptance of any such modifications or updates.

1.2 Conflict. If there is a conflict between this Agreement and any other applicable terms for the use of Enterprise APIs on a trial basis, this Agreement shall control; provided that if Customer enters into a paid API license agreement (“Paid API Agreement“) with Wikimedia, the terms of such Paid API Agreement shall govern Customer’s access or use of the Enterprise APIs.

2. Definitions.

“Affiliates” means (a) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (b) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (c) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.

“Content” means any information, data, text, images, files, media, references or other content that is provided to or retrieved by Customer through the Enterprise APIs.

“Content Sources” means the following Wikimedia projects: Wikipedia, Wikibooks, Wiktionary, Wikiquote, Wikisource, Wikiversity, Wikivoyage, and Wikinews.

“Developer Documentation” means any user guide, help information and other documentation or information, if any, regarding the Enterprise APIs that is delivered or made available by Wikimedia to Customer in electronic or other form, including any updates provided by Wikimedia from time to time.

“Enterprise APIs” means Wikimedia Enterprise Application Programming Interface, as identified by Wikimedia at its sole discretion. For the avoidance of doubt, the Enterprise APIs do not include alpha, beta, or pre-release versions of Enterprise APIs, any other products or services yet to be commercially released by Wikimedia, or any Content.

“Free Culture License” means any copyright license approved by FreedomDefined.org including, but not limited to Creative Commons Attribution-ShareAlike licenses.

“Open Source License” means any software license approved by the Open Source Initiative.

3. License; Content.

3.1 License. Subject to all terms and conditions of this Agreement, Wikimedia hereby grants Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable, worldwide, royalty-free, limited and revocable license to use and access the Enterprise APIs on a trial basis, to allow Customer to receive Content. Customer shall use and access the Enterprise APIs in accordance with the Developer Documentation.

3.2 Content. Any Content shall be subject to the applicable Free Culture Licenses and Open Source Licenses that apply to such Content. For the avoidance of doubt, except as explicitly stated herein, the terms of this Agreement shall not apply to any Content. Wikimedia does not make any representations or warranties with regards to the Content and Wikimedia will not be liable to Customer for its use of Content that is accessed through the Enterprise APIs. Customer shall be responsible for continuously updating its use of content on Customer’s own services.

3.3 Suspension. Customer acknowledges and agrees that Wikimedia may monitor Customer’s use of the Enterprise APIs, or any other activity related to the Enterprise APIs, and Customer shall not block or interfere with such efforts. Customer agrees to provide Wikimedia access to any materials related to Customer’s use of the Enterprise APIs, as reasonably requested by Wikimedia, in order to verify compliance with this Agreement. Customer acknowledges and agrees that Wikimedia may restrict Customer’s access to and use of the Enterprise APIs at any time in Wikimedia’s sole discretion.

3.4 License Restrictions. Except to the extent that any source code or related materials are made available by Wikimedia under an applicable Open Source License or a Free Culture License, and subject to the terms and conditions thereof, Customer shall not (or attempt to): (a) reverse engineer, decompile, translate or disassemble the Enterprise APIs; (b) disclose, sell, resell, rent, lease, sublicense, distribute, redistribute, syndicate, create derivative works of, assign or otherwise transfer or transmit, in whole or in part, the Enterprise APIs, except as permitted herein; (c) create a substitute or similar service or product as that of the Enterprise APIs; (d) use any part of the Enterprise APIs to violate applicable laws, in a way that violates the rights of third parties, or for any unauthorized purpose; (e) interfere with, modify, or disrupt any features or functionality of the Enterprise APIs, including without limitation any such mechanism used to restrict or control the functionality of the Enterprise APIs; (f) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Enterprise APIs; (g) remove or alter any notices or marks on the Enterprise APIs; (h) aggregate Content with third party data in such a way that an end user cannot attribute the Content under the applicable Free Culture Licenses; (i) knowingly create an application that violates the terms of service or privacy policies of the Content Sources; or (j) permit any third party to do any of the foregoing.

3.5 Access and Account. Wikimedia will provide Customer with access privileges that permit Customer to access the Enterprise APIs on a trial basis (“Customer Account“). Customer agrees that the use of the Enterprise APIs will be governed by the Wikimedia Enterprise Privacy Policy located at: https://enterprise.wikimedia.com/privacy/, as such policy may be updated from time to time. Customer will identify an administrative user name and password that will be used to set up Customer’s account. Customer must provide accurate and complete information and keep the Customer Account information updated. Customer is solely responsible for the activity that occurs on the Customer Account, and for keeping the Customer Account password secure. Customer may never use another person’s user account or registration information for the Enterprise APIs without permission. Customer must notify Wikimedia immediately of any discovered or otherwise suspected breach of security or unauthorized use of the Customer Account or the Enterprise APIs. Customer shall be responsible for the acts or omissions of any person who accesses the Enterprise APIs using passwords or access procedures provided to or created by Customer.

3.6 Modifications. Wikimedia reserves the right to update or modify the Enterprise APIs (in whole or in part) at any time in its sole discretion. If Wikimedia provides Customer with any upgrades, patches, enhancements, or fixes for the Enterprise APIs, then the items that are provided will become part of the Enterprise APIs and subject to this Agreement. However, Wikimedia shall have no obligation under this Agreement to provide any upgrades, patches, enhancements, or fixes to Customer for the Enterprise APIs.

3.7 Rate Limits and Limitations. Customer shall respect and comply with the technical and policy-implemented limitations of the API. It is Customer’s responsibility to ensure it does not exceed its API rate usage, as may be described in the Developer Documentation. Exceeding the applicable API limit repeatedly, or attempting to circumvent such limitations in any way, may result in throttling or suspension or termination of this Agreement by Wikimedia.

4. Ownership.

4.1 Enterprise APIs and Developer Documentation. Except for the limited rights and licenses expressly granted to Customer hereunder, and except to the extent that any source code or related materials are made available by Wikimedia under an applicable Open Source License or a Free Culture License, no other license is granted, no other use is permitted and Wikimedia (and its licensors) shall retain all rights, title and interests (including all intellectual property rights) in and to the Enterprise APIs and Developer Documentation. Wikimedia may use its analysis of the Enterprise APIs access and related data and performance information to improve the Enterprise APIs and other Wikimedia products and services. Wikimedia shall own all right, title and interest in and to such analyses, data and performance information. Customer agrees not to do anything inconsistent with the foregoing ownership.

4.2 Feedback. In the event that Customer provides information regarding its experience using the Enterprise APIs, suggestions, comments, or other feedback about the Enterprise APIs (all such communication, “Feedback”), Customer hereby assigns to Wikimedia all right, title and interest in and to Feedback, and Wikimedia is free to use such Feedback without payment or restriction.

4.3 Aggregate Data. Customer agrees that Wikimedia is free to disclose aggregate measures of usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Enterprise APIs hereunder (“General Knowledge“), including that which it could have acquired providing the same or similar APIs to another company. Customer further agrees that Wikimedia shall have a perpetual, worldwide, non-exclusive, royalty-free, irrevocable right and license (a) to create anonymized compilations and analyses of data regarding Customer’s use of the Enterprise APIs that is combined with data from numerous other companies (“Aggregate Data“), (b) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (“Analyses“) and (c) to create, develop, enhance algorithms, machine learning and other generally available tools in connection with the Enterprise APIs using anonymous Aggregate Data. Wikimedia shall own all right, title and interest in and to such Aggregate Data and Analyses and shall have the exclusive right to use such Aggregate Data and Analyses for any purpose, including, but not limited to product improvement and marketing the Enterprise APIs to other companies.

5. Attribution.

5.1 Customer Obligations. In connection with Customer’s distribution of Content retrieved hereunder, Customer shall where applicable provide attribution pursuant to the relevant Free Culture Licenses. While providing attribution pursuant to the relevant Free Culture Licenses, Customer shall where applicable identify the Wikimedia project from which the Content was retrieved as the source of the Content. Customer shall make best efforts to adhere to the expectations and norms of the Wikimedia user community concerning Content attribution. Where applicable, Customer shall adhere to Wikimedia’s trademark policy (available at https://foundation.wikimedia.org/wiki/Trademark_policy) and visual identity guidelines (available at https://foundation.wikimedia.org/wiki/Visual_identity_guidelines) when identifying Wikimedia as the source of Content or attributing Content to Wikimedia projects.

6. Confidentiality.

Customer agrees not to disclose any information of a confidential or proprietary nature provided by or on behalf of Wikimedia to Customer (“Confidential Information“) to any third party (other than Customer’s employees, contractors and/or professional advisors on a need-to-know basis who are subject to obligations of nondisclosure and limited use at least as stringent as those contained herein). Customer shall exercise the same degree of care with Confidential Information as it exercises with its own confidential and proprietary information, but in no event less than a reasonable degree of care. Customer acknowledges and agrees that the disclosure of Confidential Information may result in irreparable harm for which there is no adequate remedy at law. Customer therefore agrees that Wikimedia may be entitled to seek an injunction in the event Customer violates or threatens to violate the provisions of this Section 5, and that no bond will be required. This remedy will be in addition to any other remedy available at law or equity.

7. Disclaimer.

WIKIMEDIA IS PROVIDING THE ENTERPRISE APIs ON AN “AS IS” AND “AS AVAILABLE” BASIS. WIKIMEDIA HEREBY DISCLAIMS ALL WARRANTIES (EXPRESS, IMPLIED OR OTHERWISE), ORAL OR WRITTEN, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, ACCURACY, QUIET ENJOYMENT, INTEGRATION, OR COMPLETENESS OF ANYTHING PROVIDED IN RELATION TO THIS AGREEMENT. WIKIMEDIA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE ENTERPRISE APIs WILL (A) BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (B) MEET REQUIREMENTS OR EXPECTATIONS, OR (C) BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WIKIMEDIA WILL HAVE NO LIABILITY WHATSOEVER WITH REGARD TO ANY CONTENT ACCESSED THROUGH THE ENTERPRISE APIs. SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY. ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO CUSTOMER AND WIKIMEDIA’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

8. Indemnification.

8.1 Indemnity. To the fullest extent allowed by applicable law, Customer agrees to indemnify, pay the defense costs of, and hold Wikimedia and its subsidiaries, Affiliates, agents and licensees (the “Wikimedia Parties“) harmless on an after-Tax basis, from and against any and all claims, liabilities, damages (actual or consequential), losses and expenses (including all judgments, settlements, costs and attorneys’ fees) arising from or in any way related to any claims related to Customer’s (a) use of the Enterprise APIs or (b) violation of this Agreement.

8.2 Procedures. Any claim for indemnification hereunder requires that Wikimedia shall provide to Customer prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith. Customer shall not make any settlement that requires a materially adverse act or admission by Wikimedia without Wikimedia’s written consent (such consent not to be unreasonably delayed, conditioned or withheld).

9. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE WIKIMEDIA OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, OR ANY OTHER DAMAGES WHATSOEVER ARISING OUT OF OR THAT RELATE IN ANY WAY TO THIS AGREEMENT OR ITS PERFORMANCE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE ENTERPRISE APIs, EVEN IF THE WIKIMEDIA PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL WIKIMEDIA’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100).

10. Termination.

This Agreement shall commence on the date that Customer accepts this Agreement or first uses the Enterprise APIs, whichever comes first, and shall continue until terminated as set forth in this Section.  Either party may terminate this Agreement at any time; provided that, if the parties execute a Paid API Agreement, this Agreement shall automatically terminate upon the effective date of such Paid API Agreement.  Upon termination of this Agreement, all corresponding rights, obligations, and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination shall survive; (b) Customer shall cease use of the Enterprise APIs and Developer Documentation under these terms; and (c) the provisions of Sections 2.4 (License Restrictions), 3.1 (Enterprise APIs), 3.2 (Feedback), 3.3 (Aggregate Data), 5 (Confidentiality), 6 (Disclaimer), 7 (Indemnification), 8 (Limitation of Liability), 10 (Arbitration), 11 (General Provisions), and this sentence shall survive.

11. Arbitration.

Any dispute or claim arising out of or related to this Agreement, or breach or termination thereof, will be finally settled by binding arbitration in the County of San Francisco, California, United States pursuant to the International Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) then in effect by a single JAMS arbitrator with substantial experience in resolving complex commercial contract disputes.  Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  The arbitrator will apply California law to the merits of any dispute or claim, without reference to rules of conflict of law, and shall have the authority to award any and all available remedies, including legal and equitable relief.  The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator.  The arbitral proceedings and all pleadings and written evidence shall be in the English language.  Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or true copy thereof.  The prevailing party will be entitled to receive from the non-prevailing party all costs, damages, and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award.  The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues.  Customer hereby consents to the arbitration in the State of California in the County of San Francisco.

12. General Provisions.

12.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings, or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects. Customer shall not consider Wikimedia a party to any Customer’s or other third party’s terms of service (or any other equivalent terms) which use the Enterprise APIs or Content.

12.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement.

12.3 Remedies. Customer acknowledges that any breach of this Agreement by it or its employees or agents will give rise to irreparable injury to Wikimedia and not adequately compensated by damages. Accordingly, Wikimedia will be entitled to equitable relief, including injunctive relief and specific performance against any breach or threatened breach of this Agreement, in addition to any other legal remedies that may be available. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity.

12.4 Notices. All notices under this Agreement will be in writing, in English and delivered to the parties enterprise_legal@wikimedia.org or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

12.5 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood, strike, war, insurrection, riot, act of God or the public enemy, pandemics, epidemics, local disease outbreaks, public health emergencies, quarantines, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement), the affected party’s performance shall be excused or extended for the period of delay or inability to perform due to such occurrence.

12.6 Publicity. Neither party will issue any press release or public announcement regarding this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, Customer hereby grants Wikimedia a limited, non-exclusive license to include Customer’s name and standard logo within lists of customers utilizing Wikimedia’s services, both on Wikimedia’s public-facing website and in marketing and promotional materials. Any such use of Customer’s name or standard logo will be subject to Customer’s branding guidelines.

12.7 Assignment. Customer may not assign, delegate, or transfer this Agreement or any rights or obligations hereunder, or Customer’s account used to access the Enterprise APIs, in any way (by operation of law or otherwise) without Wikimedia’s prior written consent. Wikimedia may transfer, assign, or delegate this Agreement and its rights and obligations without consent. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of each party hereto.

12.8 Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Customer and Wikimedia. This Agreement will not be deemed to create any rights in third parties or to create any obligations of a party to any third parties.

12.9 Independent Contractors. Neither this Agreement, nor and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

12.10 Export. Customer shall comply with all applicable export and re-export laws and regulations in connection with Customer’s use of the Enterprise APIs.

12.11 Data Privacy. Each party agrees that, to the extent it processes any personal data in connection with this Agreement or the use or license of the Enterprise APIs or Content, such party is processing such personal data as an independent controller. Customer agrees to comply with all data protection laws applicable to it.

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